Download The Legal Status of Autonomous Underwater Vehicles

The Legal Status of
Autonomous Underwater Vehicles
by Stephanie Showalter, Director
National Sea Grant Law Center
Published in
THE MARINE TECHNOLOGY SOCIETY JOURNAL
Spring, 2004; Volume 38, No. 1, pp. 80-83
on the web:
Marine Technology Science Publications
C O M M E N TA RY
The Legal Status of Autonomous
Underwater Vehicles
AUTHOR
Stephanie Showalter
Director, National Sea Grant Law Center,
University of Mississippi
A
UVs, Autonomous Underwater Vehicles, are the cutting edge of technology
used to explore the world’s oceans. Today,
AUVs can explore areas of the oceans scientists only dreamed about mere decades
ago. These robots provide unprecedented
access to hydrothermal vents and other
mysteries of the deep. AUVs can swim under the polar ice caps and venture into underwater canyons. But scientists are not the
only group benefiting from these machines.
Once the exclusive purview of the United
States Navy and academic institutions, recent advances are bringing AUVs into the
commercial sector. AUVs can search for
offshore oil and mineral deposits, lay submarine cables, and search for mines. Private individuals and corporations can now
purchase AUVs for use in salvage operations, underwater archaeology, or simple
exploration. The possibilities appear limitless and the benefits incalculable.
Unlike tethered and remotely operated
vehicles which are a simple extension of the
research vessel, AUVs are, and legally should
be, considered separate entities. AUVs, as
the name suggests, are designed to operate
freely in the vast oceans. Ideally, AUVs would
be released and tracked from shore, eliminating the need for a costly support vessel.
The AUV’s autonomous nature, however,
creates a regulatory gap. AUVs, as discussed
in more detail below, may or may not be
vessels as defined by U.S. maritime laws. The
use of AUVs is virtually unregulated by the
federal government, mostly due to a combination of the newness of the technology,
difficulties with classification, and the unwillingness of overburdened federal agencies
to incur additional responsibilities.
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No legal framework currently exists to
regulate the use of AUVs. Permits and licenses are only required in a few narrow circumstances. While there is no indication that
the oceans are in danger of being overrun
by AUVs, their growing availability and
popularity warrant investigation into the
potential regulatory implications of the
widespread use of AUVs. This commentary
examines the current legal status of AUVs
under U.S. law and suggests that a permitting regime may already exist.
Technology often outpaces regulatory
regimes, whose adaptability is hindered by
the legislative process and administrative
agency resources. In general, the international treaties and domestic law governing
marine activities apply only to vessels. While
AUVs are autonomous vehicles that operate on and below the service of the ocean,
the application of U.S. maritime laws, including the International Regulations for
Preventing Collisions at Sea (COLREG), is
unclear because these machines may not be
considered “vessels” under U.S. law.
A vessel “includes every description of
watercraft or other artificial contrivance used,
or capable of being used, as a means of transportation on water.” (1 U.S.C. § 3). The “vessel” test is simple: is the structure “fairly engaged in or suitable for, commerce or navigation and as a means of transportation on
water?” (Hitner Sons Co. v. U.S., 13 Ct. Cust.
216, 222 (1922)). For a boat, barge, or other
floating structure to be considered a vessel,
“it must have some relation to commerce or
navigation, or at least some connection with
a vessel employed in trade.” (Hitner at 222).
The current AUV models have no such
connection to commerce or navigation.
AUVs are used to study and explore the
ocean environment. The majority, due to
their size and design, are unable to be used
as a means of transportation for goods or
people on water. Small AUVs used for scientific purposes are probably not vessels subject to U.S. maritime regulations and need
not comply with the COLREGs.
Some AUVs, however, could be considered vessels and would be required to comply with the COLREGs and other maritime
laws. For example, research is underway to
develop cargo carrying AUVs to “deliver
payloads or cargoes [sonar arrays, underwater cables, scientific instruments, etc.] to
places that manned ships or submarines cannot operator cost-effectively or safely”
(Griffiths, 2003). Already the Canadian
Defense Research Establishment and the
U.S. Office of Naval Research have proved
that AUVs can be used to lay cables. In the
spring of 1996, during a cable laying mission in the Artic, the Theseus AUV laid two
fibre optic cables under the polar ice cap over
a distance of 175 km. (Griffiths, 2003). The
ability of certain classes of AUVs to operate
in commercial activities, such as laying cables
and carrying cargo, significantly alters the
legal analysis of whether AUVs are vessels.
If AUVs are used to carry cargo, a strong
argument can be made that they are also
vessels capable of being used for transportation on the water.
So let’s assume for a moment that AUVs
are vessels. One class clearly would have to
adhere to the COLREG provisions—the
semi-submersibles. A semi-submersible AUV
is “designed to operate like a snorkeling submarine and consequently, is limited to operations near the sea surface” (Griffiths, 2003).
Rule 22 of the COLREGs requires inconspicuous, partly submerged vessels to display
a white all-round light visible up to a minimum of three miles. Vessels are also required
to carry equipment for sound signals which
varies depending on the size of the vessel. Rule
33 states that vessels less than twelve meters
long are not obliged to carry the whistles and
bells required on larger vessels. However, if
the vessel is not so equipped, it must be provided with some other means of making an
efficient sound signal. Semi-submersible
AUVs should, therefore, also be outfitted with
some type of sound signaling device.
Unlike the semi-submersible AUVs, the
majority of AUVs are designed to operate
completely under the water. It is important
to note that the COLREGs are only applicable to vessels operating on the water. There
are no lighting and signal requirements for
underwater operations, unless a vessel on the
surface is engaged in underwater operations,
such as fishing or laying cables. Submarines
only have to display lights when operating
on the surface. There may be situations,
however, when the AUV might operate on
the surface. It may need to surface to send
or retrieve data or as part of its emergency
abort system. Once on the surface, the AUV
would be subject to the COLREGs.
For vessels less than twelve meters in
length, Rule 22 requires a masthead light,
sternlight, and towing light visible up to two
miles; a sidelight visible up to one mile; and
a white, red, green, or yellow all-round light
visible up to two miles. For vessels more than
twelve meters long but less than fifty meters
long, a masthead light, visible up to five
miles, is required unless the vessel is less than
twenty meters long. For vessels between
twelve and twenty meters long, the masthead light need only be visible for three miles.
A sidelight, sternlight, towing light, and a
white, red, green or yellow all-round light
must also be visible for a range of two miles.
Although it is unclear whether AUVs are
subject to the maritime regulations for vessels, to reduce damage and liability concerns,
it is advisable for AUV operators to adhere
to the COLREG provisions dealing with
lighting and signals when the AUV is on
the surface. While an AUV may not be able
to fully comply with these requirements due
to design limitations, comparable lighting
should be incorporated into the design
whenever possible. Failure to adhere to the
international lighting and signal requirements may result in a maximum civil penalty of $5,000 which can be assessed against
both the vessel operator and the vessel itself.
Proactive engineering may facilitate compliance with the COLREGs and actually eliminate the need to determine whether an AUV
is a vessel.
In addition to classification problems,
questions often arise regarding whether an
AUV operator needs to secure permits prior
to commencing research. To reduce user conflicts and minimize environmental impacts,
a permitting regime is necessary. The foundations of a regime are already in place. If
AUVs are to be used in foreign waters, authorizations must be obtained from the foreign nation in accordance with Part XIII of
the UNCLOS. Researchers may also be required to secure temporary export licenses
through the Departments of State and/or
Commerce for research activities in foreign
waters. In addition, federal permits are currently required for AUV activities impacting
the continental shelf, conducted within a
marine sanctuary, or impacting endangered
species or marine mammals.
Activities on the outer continental shelf
and in marine sanctuaries clearly require permits. The waters are much murkier, however,
if a researcher intends to use an AUV to explore U.S. waters outside a marine sanctuary
and without contacting the continental shelf.
While a researcher can restrict an AUV to a
particular area of the ocean, a researcher has
no control over whether animals enter the
designated area during data collection. The
ocean is not a static environment. Endangered
species and marine mammals move freely,
some over great distances.
The remainder of this Commentary focuses on marine mammal interactions. Because of the overwhelming number of legal
questions currently surrounding the use of
AUVs, I chose to limit my Comment to a
discrete area of the law. Marine mammal interactions, however, are not an AUV operator’s
most serious concern. An AUV is much more
likely to collide with a surface vessel or become entangled in a net. A longer article,
which will discuss a variety of AUV legal issues, including vessel collisions, net entanglement, salvage, and liability, is currently in the
draft stages.
AUV operators do need to be aware that
a regulatory regime exists to protect marine
mammals from noise and harassment. If the
use of an AUV will “take” an endangered species or a marine mammal, an incidental take
permit is required from the National Oceanic and Atmospheric Administration
(NOAA) within the Department of Commerce. An incidental take permit may be authorized under either the Endangered Species Act (ESA) or the Marine Mammal Protection Act (MMPA). The MMPA addresses
all interactions with marine mammal stocks,
regardless of their endangered status.
In theory, an AUV could result in the
take of a marine mammal in violation of
the MMPA. The MMPA defines “take” as
“to harass, hunt, capture, or kill, or attempt
to harass, hunt, capture, or kill any marine
mammal.” While a number of worst case
scenarios can be imagined, such as a marine
mammal–AUV collision, it is unlikely that
an AUV will kill or directly injury a marine
mammal. Most AUVs travel rather slowly,
averaging about three to eight knots, which
should allow any marine mammal plenty of
time to avoid the robot. Rather, the question is whether the operation of an AUV
would be considered harassment.
Operational noise is the most likely trigger for a violation of the MMPA. While the
actual AUV makes very little noise, AUVs
are used as sensor platforms and can be
equipped with a variety of scientific instruments, including multi-beam echo sounders, side-scan sonars, and sub-bottom
profilers (Griffiths, 2003). It is this sensory
equipment, not the AUV, which would trigger the application of the MMPA. The impact of anthropogenic (human-generated)
noise on marine mammals is not well documented, but some preliminary studies indicate that marine mammal “behavior responses [to noise] range from subtle changes
in surfacing and breathing patterns, to cessation of vocalizations, to active avoidance
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or escape from the region of the highest
sound levels.” (National Research Council,
2003). On a basic level, therefore, the noise
generated by the surveying equipment on
an AUV could potentially disrupt the behavioral patterns of marine mammals.
Fortunately, it is not enough to simply
disrupt the behavioral patterns of marine
mammals or every marine activity would
violate the MMPA. To rise to the level of a
violation of the MMPA, the harassment
must involve a direct and significant intrusion on the normal behavioral patterns of a
marine mammal. Unless an AUV generates
a significant amount of noise, it is unlikely
that the use of an AUV would rise to the
level of a direct and significant intrusion.
Precedent does exists, however, for the
delay and/or prohibition of marine research
projects based on noise. In 2002, the District Court for the Northern District Court
of California in Center for Biological Diversity v. National Science Foundation enjoined
acoustical research by the National Science
Foundation (NSF) due to concerns over the
noise that would be generated by air guns.
The testing of sonar systems by the U.S.
Navy has also been delayed based on concerns regarding noise.
While the lack of a regulatory structure
for AUVs operations may not be high on
the federal government’s priority list, it
should be. As increasing numbers of AUVs
are utilized by the private sector and research
institutions, user conflicts and marine mammal interactions are inevitable. AUV operators have a right to be concerned regarding
their potential liability in the event of an
AUV malfunction or collision. While not
all operators will want to obtain permits or
notify NOAA of their activities, prudent
operators may want to consider obtaining
an Incidental Harassment Authorization
from NOAA under the MMPA.
As a general rule under the MMPA, the
Secretary of Commerce may issue permits
authorizing the taking of marine mammals.
Additionally, citizens of the United States
who engage in a specified activity other than
commercial fishing within a specific geographical region may petition the Secretary
to authorize the incidental, but not inten-
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tional, taking of small numbers of marine
mammals within that region. “Small take”
authorizations, also known as Letters of
Authorization (LOA), may permit the direct taking of marine mammals through
death and/or serious injury. The process to
secure a “small take” authorization is rather
lengthy. Upon receiving an application,
NOAA must provide notice and an opportunity for public comment and issue regulations setting forth permissible methods of
taking and monitoring and reporting requirements. Recently, the United States
Navy utilized this provision of the MMPA
to obtain a “small take” authorization for its
operation of SURTASS LFA sonar systems.
LOAs usually involve the direct taking
of marine mammals through death or serious injury, and for AUV operators, the concern is not death or injury. Initiating the
LOA process for AUV operations is not advisable, therefore, due both to the considerable amount of time involved and low risk
of an actual taking. In fact, because of the
low risk of serious injury or mortality and
the fact that any potential for injury or mortality could most likely be mitigated, an LOA
is not needed. Rather, an AUV operator
should seek an Incidental Harassment Authorization or IHA.
An IHA allows the incidental, but not
intentional, taking of small numbers of
marine mammals of a species or population
stock. Incidental taking means an accidental taking—those takings that are infrequent
or unavoidable. The National Marine Fisheries Service defines “specified activity” as
“any activity, other than commercial fishing, that takes place in a specified geographical region and potentially involves the taking of small numbers of marine mammals”
The Secretary may issue an IHA only if
he or she finds that the harassment will have
a negligible impact on such species or stock
and will not have an unmitigable adverse
impact on the availability of the species or
stock for subsistence uses. A “negligible impact” is “an impact resulting from a specified activity that cannot be reasonably expected to, and is not reasonably likely to,
adversely affect the species or stock through
effects on annual rates of recruitment or sur-
vival.” The authorization must prescribe the
permissible methods of taking by harassment, measures determined by the Secretary to be necessary to ensure no unmitigable
impact, and monitoring and reporting requirements. Most importantly for applicants, the approval process is extremely
streamlined. Within 45 days of receiving an
application for an IHA, the Secretary must
provide public notice and solicit comments
for 30 days. The Secretary is then required
to issue the authorization, with the appropriate conditions, within 45 days of the closure of the public comment period.
For the NMFS “to consider authorizing
the taking of marine mammals incidental
to a specified activity, or to make a finding
that an incidental take is unlikely to occur,”
the applicant must submit a written request
to the Office of Protected Resources and the
Regional Office where the specific activity
is planned. It is the above italicized language
that indicates the IHA process could easily
be used to determine whether AUV operations need permits. To date, most IHAs have
authorized the incidental harassment of
marine mammals through activities involving noise, including sonar and seismic testing. The potential application of the IHA
program, however, is quite broad.
For example, in May 2003, NOAA issued an IHA for construction activities in
Monterey, California. The United States
Coast Guard applied for an IHA for the
possible harassment of small numbers of
California sea lions and Pacific harbor seals
incidental to the installation of a new floating dock. It was estimated that as many as
600 California sea lions and 20 harbor seals
could be affected by the activities at the dock.
The potential effects of the construction
activities included a temporary shift in the
animals’ hearing threshold during pile driving, behavior changes, and temporary cessation of normal activities, such as feeding.
Several mitigation measures were imposed
on the Coast Guard to reduce the potential
for harassment, including time restrictions
for pile driving. The NMFS concluded that
“while behavioral modifications, including
temporarily vacating the haulout, may be
made by these species to avoid the resultant
visual and acoustic disturbance, this action
is expected to have a negligible impact on
the animals.”
The IHA application process is an ideal
avenue to force the issue of AUV regulation.
Government action is too often reactionary,
with agencies waiting until the activities are
already firmly entrenched before taking steps
to regulate. The IHA process is an excellent
opportunity for NOAA and the industry to
investigate the potential impacts of AUV use
on marine mammals and marine habitats.
Researchers and private operators concerned
about the potential impacts of AUV use on
marine mammals should seriously consider
applying for an IHA prior to their next cruise.
If the agency discovers, after processing a few
IHAs for AUV operations, that the risk of
harassment is so minute that permitting is
not necessary, AUV operations can continue
unimpeded. Even if NOAA determines that
harassment is likely, the benefits of securing
approval should outweigh any costs associated with the additional paperwork.
Once in possession of an IHA, an individual is no longer “subject to the penalties
under the [MMPA] for taking by harassment
that occurs in compliance with such autho-
rization.” Besides immunizing an operator
from prosecution under the MMPA for harassment, an IHA could be used to alleviate
the concerns of insurers and institutions
worried about liability and user conflicts.
Through the application process, a researcher
or operator should discover the frequency
in which other activities are conducted in
the area. Any potential user conflicts would
then be avoidable, through either the voluntary actions of the operator or the mitigation requirements imposed by the agency.
Although a regulatory gap currently exists with regard to AUVs, options are available to obtain permission for AUV operations
or at least notify the appropriate federal agencies. By working within existing regulatory
programs, AUV operators can work with the
federal government to make the oceans a safer
place for both humans and animals. This proactive approach may enable the industry to
postpone and even prevent regulation in the
future, saving research institutions and operators valuable time and money. The wealth
of data that AUVs could collect is unfathomable. Hopefully, the use of these little robots
will continue to grow and enrich the scientific knowledge of the world.
References
Griffiths, G. 2003. Technology and Applications of Autonomous Underwater Vehicles.
London: Taylor & Francis. 342 pp.
National Research Council. 2003. Ocean
Noise and Marine Mammals. Washington,
D.C.: National Academies Press. 204 pp.
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